By Dominica C. Anderson and Lauren M. Case
Significantly, this year multiple large verdicts have been awarded against companies making and selling talcum products in cases where plaintiffs allege related cancer following use of talcum powder products.
Most recently, on October 27 a Missouri jury awarded a woman who developed ovarian cancer more than $70 million in compensatory and punitive damage related to her prolonged use of talcum powder made and sold by Johnson & Johnson, and Imerys Talc America Inc., which mines the talc. (Deborah Giannecchini v. Johnson & Johnson, et al., No. 14422-CC09012-01, Mo. 22nd Jud. Cir.) The damages award follows two separate verdicts against Johnson & Johnson this year in the same Missouri court of $72 million and $55 million.
Additionally, in California just last month, following a six-week jury trial, a Los Angeles jury returned a $18.07 million verdict against talc supplier Whittaker Clark & Daniels for its alleged role in causing California political figure, Philip Depoian’s, mesothelioma. (Philip John depoian and Julie Pastor Depoian vs. American International Industries, et al., Los Angeles Superior Court, No. BC607192.) Mesothelioma is a form of cancer primarily associated with work place exposure to asbestos. Depoian’s attorneys argued that Depoian was exposed to asbestos in talc products at a barber shop where his father worked, and through his own use of products including Old Spice, Clubman, Kings Men, and Mennen Shave Talc. Asbestos and talc are natural silicate minerals often mined in the same deposits. The parties reached a confidential settlement on October 26, 2016 before the second phase for punitive damages was set to resume.
With many new cases filed in 2016, talc litigation is on the rise. 2016 saw so many new talc-related actions filed in the district courts that last month, the United States Judicial Panel on Multidistrict Litigation filed a transfer order to centralize pretrial proceedings in 11 actions in the district courts to the District of New Jersey. (In re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices and Products Liability Litigation, MDL No. 2738, 2016 U.S. Dist. LEXIS 138403 (J.P.M.L. October 5, 2016.) The Panel noted that it was aware of forty-three potential “tag-along” actions pending in twenty-three districts. All but three of the 54 total actions (transferred actions and the potential tag-along actions) were filed in 2016.
All of the actions share common factual questions arising out of the allegations that use of Johnson & Johnson talcum powder products can cause ovarian or uterine cancer in women. The majority of the actions filed to date are personal injury or wrongful death actions. Two actions are consumer class actions brought on behalf of putative classes of women who allege defendants deceptively marketed talcum powder products for use without disclosing talc’s carcinogenic properties.
With these significant filings and verdicts, will coverage litigation follow? Will Talc be the new asbestos??